Duck and Cover has obtained Interplay's latest filing in the ongoing legal struggle between Interplay and Bethesda. The filing is confusingly called "Interplay Entertainments Corp.'s Memorandum of Points and Authorities in Reply to the Opposition of Bethesda Softworks, LLC to its Motion for Attorney's Fees and Costs; Declaration of Rochelle A. Herzog." For those who have no idea what that means, this filing is basically a document detailing why Interplay says it deserves its court fees from Bethesda, as well as how they say Bethesda is basically the evil Empire.

Here are the general points that Interplay makes:

Bethesda's Statement of Facts Contains Inaccuracies

Bethesda's Actions Reflect Bad Faith

Interplay is a "Prevailing Party"

The Attorney's Fees Requested Are Reasonable and Consistent With the Court's Standards

The document itself is 23 pages long, and I've gone through and highlighted the most relevant and interesting points. From what Interplay says, it seems that Bethesda opposed Interplay's first motion for court fee reimbursement, arguing basically the same things which the court struck down in the Preliminary Injunction hearing. For example, Bethesda said that Interplay did not deserve the fees because "Interplay had not secured any kind of financing for the [Fallout] MMOG...within the required two year period and its license automatically terminated." Interplay argues that not only had they already presented evidence of a financing arrangement that was made within the timeframe, but that the entire argument is without merit in this motion for attorneys' fees:

"In any event, Interplay's Motion is unrelated to Interplay's financing for the MMOG or Interplay's financial circumstances. The Motion is based solely on Interplay's successful defense of Bethesda's PI [Preliminary Injunction] Motion."

Interplay also claims that:

"not only was the preliminary injunction unnecessary and pursued in bad faith, Bethesda's filing of the lawsuit is a bad faith attempt to deny Interplay the merchandising rights to which its entitled under the Asset Purchase Agreement ("APA") and the MMOG rights it is entitled to under the Trademark Licensing Agreement ("TLA").

This means they believe Bethesda never intended to honor any part of their agreement with Interplay.

Interplay provides more claims that Bethesda is trying to bully them into submission - basically bleeding them dry:

"Bethesda continued to pursue the PI Motion while continuously emphasizing Interplay's negative financial situation. Bethesda was keenly aware that Interplay could not fund expensive, protracted litigation. However, even after discovery was conducted and Bethesda knew it could not prevail because it had insufficient evidence to carry its burden of proof, it nevertheless continued to press for the injunction which it knew would increase the expense of litigation and delay the case."

There is quite a bit of legal precedent that Interplay's lawyer cites, and I found this one to be interesting:

"Bethesda's oppressive litigation tactics qualify this case as "exceptional" thereby entitling Interplay to attorney's fees and costs under the Lanham Act as the prevailing party."

Now for meaty bits:

"The same arguments made before the Court at the hearing of Bethesda's PI Motion are reiterated in the Opposition [to Interplay's request for court fees] and have no more merit now than they did on December 10, 2009. Interplay disputes many of the alleged "facts" asserted in Bethesda's Opposition. More specifically:

Interplay did not forfeit its rights to use the Fallout mark upon termination of the Trademark Licensing Agreement ("TLA") as alleged by Bethesda, because it did not breach the TLA and hence, no termination occurred. Since there was no breach, Interplay did not forfeit its rights and could not have infringed the Fallout mark."

...

"Interplay contends that Bethesda has evidence ongoing bad faith in connection with the PI Motion and that the entire lawsuit is an attempt to deny Interplay the benefits of the APA merchandising rights and the TLA MMOG rights."

The basic major argument from Interplay is that despite not having a case, Bethesda still continued with the lawsuit in order to bleed Interplay dry through legal fees.

It will be very interesting to see how the court decides here. Rest assured that the decision, no matter which way, will have no effect on the development and scheduled release of Fallout: New Vegas.

MorbusSDF!

Joined: 29 Dec 2006
Posts: 4
Location: Porto, Portugal

Posted:
Fri Mar 05, 2010 2:08 pm

This document is old, right?

King of CreationRighteous Subjugator

Joined: 20 Dec 2003
Posts: 5103

Posted:
Fri Mar 05, 2010 2:51 pm

No, it's new. It was filed by Interplay 01 March 2010 - 4 days ago. Only reason I didn't post about it sooner was because I've been pretty busy and didn't have time to read through the whole thing.

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